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Hiring employees - are the questions you ask discriminatory?

Nowadays, in the recruitment process, potential employees often submit online application forms that require personal information including name, address, age and gender. A recent case, Willmott v Woolworths Ltd1 highlights the importance for companies to take care during the recruitment process in order to avoid contravening the Anti-Discrimination Act 1991 (Qld) (the ADA).

WILLMOTT’S CASE

When Woolworths’ advertised a position online for a console operator at a petrol station, Mr Willmott, who was unemployed at the time, sought the opportunity. The online application form had mandatory fields requiring his personal information including date of birth and gender.

Mr Willmott did not complete the application and contended that these fields breached section 124 of the ADA as section 7 of the ADA prohibits ‘discrimination on the bases on certain attributes’ including age, gender identity and race.

The online application form also required Mr Willmott to show proof of right to work i.e. Australian Citizenship, temporary work visa etc. which was to be uploaded as a document. Mr Willmott did not have these documents on hand and, as a result, would miss the closing date for the position. He also had a letter from the Department of Immigration and Border Protection that suggested that there were other options available to confirm his entitlement to work and that he did not require citizenship documents to apply for employment.

WOOLWORTHS’ DEFENCE

In turn, Woolworths’ responded that an applicant’s date of birth was required to determine the entitlements of employees. It also facilitated the differentiation of employees with common names and for positions that required employees to be 18+. The decision of Senior Member Oliver rebuked this defence. He stated it was merely necessary for an application to ask if they are over 18 years of age and it was not mandatory to require their date of birth.

Woolworths contended that information pertaining to the right to work was required to maintain their obligations under the Migration Act 1958 (Cth) (the Migration Act) and that using Visa Entitlement Verification Online (VEVO) to check via the Department of Immigration would be substantial and time consuming task for 670,000 applicants and was not a practical way to filter eligible workers.

Woolworths also argued that they required an applicant’s gender to gather statistics under the Workplace Gender Equality Instrument 2013 (WGE).

DECISION AND REASONING

It was found that for jobs that require applicants to be 18+ it is sufficient to ask if prospective employees if they are over 18; specific age is irrelevant. It was found that determining entitlements was not necessary until the applicant has been offered a position and therefore it is not reasonably necessary to gather this information via an online application.

Senior Member Oliver noted the obligation under the WGE instrument to gather information concerning gender lies on the employer. There should not be an obligation on the potential applicants to do so. Therefore it is not necessary to have a mandatory field for ‘gender’.

The requirement to upload right to work documentation which contains ‘substantial amounts of sensitive information’ by applicants was unnecessary as stated by Senior Member Oliver. A practical method would be for the recruitment officer to sight the relevant documents prior to the interview. There is no legal requirement under the Migration Act for proof of a ‘right to work’ at the application stage. Therefore, this defence fails and the ADA does not contravene Migration Act. The Migration Act is only breached if an employer allows a person to work if they are an unlawful citizen.The Privacy Act 1988 (Cth) (the Privacy Act) does not allow organisations to gather personal information unless it is reasonably necessary for an entity’s functions or activities; the information that Woolworths attempted to collect for its recruitment activities was found to be unnecessary and not reasonably required.

Woolworths attempted to argue that section 124 of the ADA was inconsistent with the Privacy Act and Migration Act and that it was rendered invalid by section 109 of the Constitution; they were not successful with this argument.

Senior Member Oliver found in favour of Mr Willmott finding that requiring date of birth, gender and proof of right to work is a contravention of section 9 of the ADA. Mr Willmott was awarded $5,000 for embarrassment, humiliation and some notional loss of chance.

IMPLICATIONS FOR EMPLOYERS

This case highlights how collection of personal information in the recruitment process may infringe the ADA. Employers need to be careful about requiring an applicant to provide information which could be classified as a protected attribute as it may constitute unlawful discrimination.

If an employer is going to require such information they must be able to demonstrate that it is reasonably required for a purpose that does not involve discrimination; just because requiring certain information may be more efficient for the recruitment process will not mean that it is “reasonably required” and therefore not discriminatory.

Employers should also keep in mind the use of mandatory fields in application forms which concern characteristics or attributes of an applicant. An employer should consider whether the information is needed at the application stage, or whether it would be more appropriate to be obtained at a later date.

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